Critical Theory

Critical theory views the law as a tool of social, political, and economic reform oriented toward addressing social injustices. In attending to the social context of the law, critical legal theory draws on social theory, political philosophy, economics, and literary theory. One of the main tenets of critical theory is the elimination of unjust hierarchies of privilege that are created and perpetuated through educational practices, pedagogy, admissions, grading, job placement, awarding of research grants, conferences, publishing, and faculty or teacher recruitment, as well as interpretations of free speech principles. This position is outlined in one of the most influential critical legal theory texts, Legal Education and the Reproduction of Hierarchy (1983), by Duncan Kennedy.

All of these educational practices rest on a false ideology of rationalism, consisting of objectivity, impartiality, impersonality, neutrality, universalism, and fairness. The critical legal theory critique of the politics of reason regards rationality as inherently incoherent, authoritarian, and politically biased. It is accompanied by a critique of capitalism as reflected in such notions as corporate identity, property laws, fair value, due process, title, and contract applied to the social construction of the law, its enforcement through administrative policy, electoral politics, and political discourse. This approach is important in questioning technocracy and a marketplace model of education. The background of this theory and its application to education are discussed in this entry.

Theoretical Background

The term critical theory is derived from the Greek kritikos (decide) and theoria (behold). Critical theory as applied to the law is most closely associated with Franz Neumann (1900–1954) and Otto Kirchheimer (1905–1965) of the Frankfurt School and Jürgen Habermas (1929– ), as well as Max Weber’s (1864–1920) social theory as valuationally oriented, Antonio Gramsci’s (1891–1937) concept of hegemony, Michel Foucault’s (1926–1984) historicism, and Jacques Derrida’s (1930–2004) deconstructionism. All of these are legal theories that challenge accepted norms and standards believed to perpetuate hierarchical structures of domination in modern society.

Critical theory has been influential in legal theory on both sides of the Atlantic. In Germany, Neumann and Kirchheimer advanced a critical history of legal transformation supporting the welfare state, liberalism, and democratic institutions, particularly a “social rule of law” associated with the Weimar constitution, arguing that its failure was due to the entrenchment of capitalist ideology. Kirchheimer proposed a parliamentary approach to articulating the interests of diverse social groups and developed a postwar legal analysis of the depoliticization of the public sphere as it was increasingly replaced by consumerism. Neumann presented a social democratic interpretation of Max Weber’s (1864–1920) theory of modern law, a critique of liberalism, and the limits of legalistic thinking under certain political and economic conditions.

More recently, Habermas argued for a theory of rights, rooted in a Kantian approach to natural law that attempts to ground rights on moral principle in contrast to the dominant Anglo-Saxon tradition of legal positivism, realism, and pragmatism that rests upon the legitimacy of political authority. Drawing on Kantian constructivism and an interpretive social-scientific research approach that introduces a provisional character to normative principles, Habermas promotes a democratic communicative process in deriving a system of rights aimed at emancipation, what he calls “the logical genesis of rights,” which requires people to see one another as political equals, as “free and equal consociates under law.”

From this granting of mutual autonomy and from equal freedom under the law expressed through public discourse, legal legitimacy is achieved through an ongoing democratic process resulting in an assent by all citizens to legislation. In this manner, Habermas establishes a set of legal guarantees, or rights, that govern the process of constructing laws. In other words, it is a set of formal rather than substantive normative principles that are intended to ground and ensure the provisions for communicative action.

United States Application

In the United States, critical legal theory grew out of the social activism of the 1960s and was first spoken of in 1977 at a conference at the University of Wisconsin–Madison. It has differentiated into a number of applications, including feminist legal theory, critical race theory, postmodern legal theory, moral legal theory, and a critical political economy strand. One important area of critique is that of the theory of rights characteristic of mainstream American legal theory, although it is not shared by all feminist and critical race theorists.

There are five main criticisms of the rights approach in pursuing social reform. First, it is less useful in attaining progressive social change than assumed. Second, legal rights are indeterminate and incoherent. Third, the rights discourse inhibits imagination and mystifies people about how the law works. Fourth, it reflects and produces isolated individualism that undermines social solidarity. Fifth, rights discussion can impede progressive democratic and justice movements. A second major feature of critical theory is its critique of the rule of law viewed as a neutral set of rules, when it in fact operates as a tool of oppression.

Derived from traditional class critique, critical theory examines discrimination through educational practices based on other types of difference, such as race, ethnicity, language, gender, and sexual orientation. This examination has been conducted on a broader, more pluralistic scale than studies have been of any one socially identifiable marginalized or oppressed group. Of all forms of American critical legal theory, critical race theory has received the most attention in education, bringing into question the seeming race-neutral and color-blind character of law and policy, including those means used to produce racial inequality such as immigration, desegregation, affirmative action, curriculum selection, instruction, and educational administration and leadership. For adherents of legal critical theory, education is often the engine that drives legal reform, such as the civil rights legislation that emerged in response to desegregation in the landmark Brown v. Board of Education of Topeka (1954). This approach has also been applied to curriculum design, assessment practices, and educational funding disparities.

Drucilla Cornell draws on critical theory, primarily Habermas’s The Structural Transformation of the Public Sphere (1962), in examining the disappearance of the public sphere in modern society. The major implication for school law is the transformation of education from a public sphere locus into a technically rationally regulated sphere; in critical theory terms, this is a colonization of lifeworld by system. This compromises the right to privacy in dealing with personal experience, inhibiting communicative action by removing the conditions under which it takes place, thereby greatly reducing the possibilities for civil society and the community- based activity typical of lifeworld that is necessary for educational reform. In addition, critical legal theory has implications for research practices, favoring qualitative and interpretive methods that include subjectivity and social and cultural embeddedness. One major research innovation is the expansion of sources considered appropriate for narrative analysis, including parables, chronicles, stories, literature, and film that represent and express the more ambiguous and subtle aspects of lifeworld experience. In fact, it is the broad range of experiential, that is, historical and biographical, as well as aesthetic, sources that carry their own legitimacy that conventional positivistic data cannot. For these reasons, scholarship that is informed by existentialism, phenomenology, and hermeneutics, in addition to other empirical research practices, produces a more authentic expression of marginalized groups. Along with the traditional conventions of critical theory, poststructural and deconstructionist analyses that uncover underlying contradictions have been included in critical legal theory research methods.